CHARLESTON – The state Supreme Court has ruled a government agency isn’t immune from contract claims.
In a memorandum decision issued January 20, the court ruled Marshall Circuit Court Judge Jeffrey Cramer erred when he dismissed Gary and Lauralee Wiechman’s claim against the Marshall County Sewerage District. The justices reversed, in part, and affirmed, in part, the dismissal order and remanded the case back to circuit court for further proceedings.
In the underlying case, the Wiechmans filed their complaint in 2019, saying the sewer district began work on a new sewage system in their neighborhood in the unincorporated area of Mozart in September 2017. The couple gave the defendant permission to use their driveway to provide access for excavating equipment. The district said it would fix any damage done to the property.
“Defendant’s equipment busted and broke the concrete of plaintiffs’ driveway that leads to the lower portion of Plaintiffs’ property,” the original complaint states. “During construction, defendant blocked off plaintiffs’ driveway with a large pile of gravel. This gravel was not stored on the construction easement. Plaintiffs did not give permission for this storage.”
The couple says a peach tree in their orchard also was damaged and killed by the defendant during construction of the sewer system. They say they also were told any manhole covers would be level with the ground so they could drive a lawnmower over them, but one manhole cover protrudes at least 8 inches above the ground.
“During construction, defendant spread gravel throughout plaintiffs’ property, including their orchard,” the complaint also states. “As of the filing of this complaint, there continues to be rocks and gravel strewn throughout plaintiffs’ property which interferes with plaintiffs’ ability to perform lawn maintenance.”
The Wiechmans also say the sewer district construction altered water runoff that destroyed a dirt and gravel driveway, preventing access to part of their property. The water runoff also is causing damage to part of their property. They said they have rented excavator equipment to try to address the runoff issue. They also say the defendant used their property as a dump site for discarded trees, dirt and rocks from other properties.
In a December 19, 2019, order granting the sewer district’s motion to dismiss, Cramer said a political subdivision is entitled to a general grant of immunity from the assessment of civil damages pursuant to state code. Cramer also ruled that the Weichman’s complaint does not state a claim for relief, respondent is entitled to immunity pursuant to state code.
The couple appealed Cramer’s order dismissing their claims with prejudice.
On appeal, the couple set forth four assignments of error, all of which allege error by Cramer in dismissing their claims of breach of contract.
“The circuit court did not address state code that says ‘political subdivision’ means any county commission, municipality and county board of education; any separate corporation or instrumentality established by one or more counties or municipalities, as permitted by law; any instrumentality supported in most part by municipalities; any public body charged by law with the performance of a government function and whose jurisdiction is coextensive with one or more counties, cities or towns; a combined city-county health department created pursuant to article two, chapter sixteen of this code; public service districts; and other instrumentalities including, but not limited to, volunteer fire departments and emergency service organizations as recognized by an appropriate public body and authorized by law to perform a government function,” the memorandum decision states.
“Subject to sections five and six of this article, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function.”
The Weichmans say six of the eight counts of their original complaint are expressly breach of contract claims for the sewer district’s multiple violations of the easement agreement. They also say that because the express language of that statute specifically provides that the act does not, and cannot, be construed to apply to civil cases seeking damages under breach of contract claims, the circuit court erred by finding that respondent was entitled to immunity.
In its Supreme Court brief, the sewer district recognizes the act does not apply to civil actions seeking recovery from a political subdivision arising from contractual liability
“Upon consideration of (the sewer district’s) concession of error by the circuit court regarding its improper dismissal of (the couple’s) breach of contract claims and the clear language of West Virginia Code … we agree that the circuit court erred in dismissing counts one through six of (the couple’s) complaint,” the opinion states. “Those claims are based upon (the sewer district’s) alleged breach of the easement agreement, which (the district) does not contest is a valid contract.
“Therefore, we reverse the circuit court’s dismissal of those claims and remand this case to the circuit court with directions to reinstate counts one through six of (the couple’s) complaint to the active docket of the circuit court. However, it does not appear that (the Weichmans) contest the dismissal, with prejudice, of their remaining claims. We agree with (the sewer district) that the circuit court properly dismissed counts seven and eight of (the couple’s) complaint because (the sewer district) is immune, by statute, from those claims.
Chief Justice Evan Jenkins and Justices Beth Walker, Tim Armstead and John Hutchison concurred in the opinion. Because he recently took office, Justice Bill Wooton did not participate in the matter.
Teresa Toriseva of Toriseva Law and Jake Polverini, who formerly worked at Toriseva Law, represented the Weichmans in the case. Brent P. Copenhaver of Linkous Law in Morgantown represented the sewer district.
West Virginia Supreme Court of Appeals case number 20-0036 (Marshall Circuit Court case number 19-C-150)
